Rogers Group, Inc. v. City of Fayetteville, Arkansas

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 11-2482
___________

Rogers Group, Inc., *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
City of Fayetteville, Arkansas, *
*
Appellant. *
___________

Submitted: February 8, 2012
Filed: July 5, 2012
___________

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
___________

SMITH, Circuit Judge.

"Rogers Group, Inc. ('Rogers Group') brought suit in district court1 against the
City of Fayetteville, Arkansas, ('the City') seeking to prevent the enforcement of the
City's ordinance regulating rock quarries in or near the City's corporate limits."
Rogers Group, Inc. v. City of Fayetteville, Ark., 629 F.3d 784, 785 (8th Cir. 2010).
The district court granted Rogers Group's motion "for a preliminary injunction to
enjoin the ordinance prior to its enforcement date," and this court affirmed. Id.
Following this court's affirmance, the City advised the district court that it repealed

1
The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
the ordinance "to preserve the viability of the Rock Quarry Operating License within
Fayetteville's city limits and to avoid litigation expense." Rogers Group then moved
for attorneys' fees and costs, arguing that it was a prevailing party. The district court
granted the motion, concluding that Rogers Group was "entitled to a fee award under
[42 U.S.C.] § 1988 even though the [c]ourt never reached the constitutional claims
because the allegations in the complaint raised a substantial constitutional claim
sufficient to confer jurisdiction, which is sufficient to support an award of fees under
§ 1988." The City appeals, arguing that Rogers Group is not a "prevailing party"
entitled to an award of attorneys' fees pursuant to § 1988. We affirm.

I. Background
"Rogers Group operates a limestone quarry ('the Quarry') in an unincorporated
section of Washington County, Arkansas." Rogers Group, 629 F.3d at 785. "The
Quarry is located entirely outside, but within one mile of, the corporate limits of the
City." Id. It "is not located within the City's planning or zoning authority." Id. at 786.

The City passed an ordinance providing "for the licensing and regulation of
rock quarries." Id. This ordinance found that "'the operation of a rock quarry would
be a nuisance to the citizens and City of Fayetteville, Arkansas[,] if operated or used
other than as prescribed in [the Ordinance].'" Id. (alterations in original). The
ordinance provided that "to operate a rock quarry within the City or one mile beyond
the City's corporate limits, a quarry operator must obtain a license from the City after
demonstrating its full compliance with all requirements of the Ordinance." Id. It
"limit[ed] quarry operations to a total of 60 hours per week and allow[ed] 'major noise
producing activities' only between 8:30 a.m. and 4:30 p.m., Monday through Friday."
Id. (footnote omitted). It also "restrict[ed] rock blasting to a five-hour period on the
first and third Wednesday of each month." Id. Additionally, the ordinance stated that
"a quarry must comply with several 'safeguards and measures' to protect the City's
roads from all vehicles, regardless of ownership, exiting the quarry." Id. (footnote

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omitted). The consequences of violating the ordinance included criminal punishment,
fines, and revocation or suspension of a quarry's license. Id.

A. Complaint
Rogers Group brought suit against the City in federal district court. In its
complaint, Rogers Group stated that the district court had subject matter jurisdiction
over the suit based on (1) diversity jurisdiction because the lawsuit was between
citizens of different states and the amount-in-controversy exceeded $75,000, and (2)
federal question jurisdiction because the complaint asserted rights arising from the
Constitution and laws of the United States.

Count I of the complaint requested "declaratory and injunctive relief pursuant
to 28 U.S.C. §§ 2201–02." Count I asked the district court to "declare that the City
has no authority to regulate or license the Quarry and further request[ed] that the
Court enjoin the City from attempting to enforce the Ordinance against the Quarry."
According to Rogers Group, under Arkansas law, the City lacked authority to regulate
the Quarry, which was located entirely outside the City limits, "because a rock quarry
is not a nuisance per se."

Count II asserted that the ordinance was "arbitrary, capricious, and
unreasonable" and "denie[d] Rogers [Group] liberty and property without due process
of law." According to Rogers Group, the ordinance "violate[d] the Due Process
Rights conferred by the 14th Amendment of the United States Constitution and
Article 2 Section 8 of the Constitution of the State of Arkansas." In Count II, Rogers
Group claimed that no rational basis existed for the ordinance and asked the court to
"declare that the Ordinance is invalid and enjoin the City from enforcing the
Ordinance against Rogers [Group] or any other person or entity" under §§ 2201–02.
Rogers Group also asked the court, "[p]ursuant to 42 U.S.C. § 1983," to "award
Rogers [Group] damages in an amount commensurate with the damages it has

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suffered, together with attorneys fees and costs incurred herein, and for all other
proper legal and equitable relief." (Emphasis added.)

Count IV sought relief on a claim for an unconstitutional taking without just
compensation, in violation of the Fifth and Fourteenth Amendments to the United
States Constitution.2 Rogers Group asserted that it "ha[d] not been compensated for
the taking of its vested rights to mine crushed stone in the Quarry and [was] entitled
to just compensation in an amount determined at trial, or to an order enjoining
enforcement of the Ordinance based on the City of Fayetteville's failure to provide
just compensation." Rogers Group sought damages "[u]nder 42 U.S.C. § 1983."
(Emphasis added.)

B. Preliminary Injunction
Rogers Group moved pursuant to Federal Rule of Civil Procedure 65 for a
preliminary injunction enjoining the City from enforcing or attempting to enforce the
ordinance. The district court entered an order granting Rogers Group's motion for a
preliminary injunction after analyzing the Dataphase3 factors. The court
acknowledged that, under Arkansas law, "whether a lawful activity is a nuisance must
be judicially determined." (Citing City of Texarkana v. Brachfield, 183 S.W.2d 304
(Ark. 1944).) The court concluded that because "[n]o court has determined that
[Rogers Group's] quarry is a nuisance," Rogers Group was likely to "prevail on the
merits of its claim, based on lack of jurisdiction on the part of the City to legislate as
to quarry activity outside its city limits." As a result, the court "f[ound] no need to
address the additional bases of [Rogers Group's] claims." (Emphasis added.) Thus,
the district court entered an order enjoining the City from enforcing the ordinance.

2
Count III is not material to the present appeal. It sought relief on a claim for
an unconstitutional taking without just compensation in violation of the Constitution
of the State of Arkansas.
3
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109 (8th Cir. 1981).

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 The City appealed the district court's preliminary-injunction order, and we
affirmed. See Rogers Group, 629 F.3d at 787–90. Regarding the probability of Rogers
Group's success on the merits, we concluded that "[a]bsent a judicial determination
that the Quarry's activities constitute a nuisance, the City has no statutory authority
to regulate the Quarry in the guise of abating a nuisance." Id. at 789. Therefore, we
held that "the district court did not err in finding that Rogers Group was likely to
succeed on the merits of its suit." Id.

C. Motions for Summary Judgment/Dismissal
Following the appeal, the district court held a telephone conference call with
the parties to discuss the status of the case—specifically, the pending motions for
summary judgment. During this conference, the court expressed its view that,
pursuant to the law-of-the-case doctrine, Rogers Group was entitled to partial
summary judgment on Count I of its complaint. The court also indicated that, if it
granted Rogers Group summary judgment on Count I, then such a ruling would likely
render Rogers Group's remaining claims moot and would require the court to also
deny the City's cross-motion for summary judgment as moot. The City requested
additional time to discuss the matter with the City Council before the court entered
orders on the pending motions. The court granted the City's request.

Thereafter, the City filed a "Report to the Court" in which it advised the court
that the City Council had passed Ordinance #5393, which repealed and deleted the
challenged provision in Ordinance #5280 that made it applicable to quarries operating
outside of Fayetteville's city limits. The City advised the court that it took this action
"to preserve the viability of the Rock Quarry Operating License within Fayetteville's
city limits and to avoid litigation expense."

Rogers Group responded that, despite the new amended ordinance, it was still
entitled to a final ruling on the issue of the City's authority to regulate rock quarries
outside the city limits and that, based on the law of the case, Rogers Group was

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entitled to partial summary judgment on that issue. Rogers Group conceded that, if
the court granted partial summary judgment on that issue, the remainder of its claims
would be moot and should be dismissed without prejudice.

Thereafter, the court issued an order, stating:

10. In the Court's view, the issue on which this case
turned—whether the City (as it attempted to do by the enactment of
Ordinance #5280) has the authority to regulate rock quarries outside the
city limits absent a judicial declaration that such activity is a
nuisance—has been decided adversely to the City's argument and that
is the law of this case on that point. Further it is the Court's view that the
City's action of replacing Ordinance #5280 with an amending ordinance
not containing the unauthorized provisions has no bearing on the
resolution of that issue.

Thus, because the City has now (apparently prompted by adverse
holdings by this Court) eliminated the challenged provisions from its
City Code, it appears to the Court that [Rogers Group] has succeeded in
its challenge to the unauthorized provisions of Ordinance #5280 the
same as if, in the absence of such action by the City, the Court had
granted (as it would have) [Rogers Group]'s Motion for Partial Summary
Judgment together with the injunctive relief sought by [Rogers Group]
in connection with its challenge.

11. It follows therefore that, because of the City's action in
replacing Ordinance #5280 with an amended ordinance, [Rogers
Group]'s request for a declaratory judgment concerning the validity of
the replaced ordinance is moot and it is unnecessary for the Court to
further address that request.

12. It also follows that [Rogers Group]'s request for a permanent
injunction is likewise moot because Ordinance #5280 is no longer in
place or operative. Moreover, in light of the foregoing, the Court
concludes that the remainder of [Rogers Group]'s claims are moot and
they will be dismissed.

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 Therefore, the court held that both Rogers Group's motion for partial summary
judgment and the City's cross-motion for summary judgment were moot. The court
dismissed the case because no case or controversy existed.

D. Motion for Attorneys' Fees and Costs
Rogers Group then filed a motion for attorneys' fees and costs, seeking to
recover $110,419.71 in attorneys' fees and costs incurred in prosecuting the action.
The court granted the motion, finding that Rogers Group was a "prevailing party"
because

* there was a court-ordered change in the legal relationship because
the preliminary injunction blocked the City from enforcing
Ordinance #5280—which the City had planned to do on
December 1, 2010;

* the preliminary injunction was a judgment rendered in favor of
the plaintiffs because it was an order from which an appeal could
be—and in this case, was taken; and

* the preliminary injunction provided plaintiffs with "judicial
relief" in the sense that the injunction prevented the
implementation and enforcement of Ordinance #5280, which
could have severely limited [Rogers Group] from operating
and/or expanding [its] business. See Rogers Group, 629 F.3d at
790.

Furthermore, the court found that Rogers Group was "entitled to a fee award
under § 1988 even though the [c]ourt never reached the constitutional claims because
the allegations in the complaint raised a substantial constitutional claim sufficient to
confer jurisdiction, which is sufficient to support an award of fees under § 1988."
(Citing Kimbrough v. Ark. Activities Assoc., 574 F.2d 423, 426–27 (8th Cir. 1978)).

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 II. Discussion
The City argues that the district court erroneously awarded attorneys' fees to
Rogers Group because it was not a prevailing party entitled to an award of attorneys'
fees pursuant to 42 U.S.C. § 1988. According to the City, Rogers Group obtained a
preliminary injunction based upon its declaratory-judgment claim involving only the
interpretation of a state statute that was "dissolved or otherwise undone" when the
district court dismissed the claim as moot. As a result, the City asserts that Rogers
Group is not a "prevailing party." The City contends that the district court erred by
awarding attorneys' fees pursuant to § 1988 because Rogers Group prevailed not for
a claim to protect federal or constitutional rights, but only on an issue of state
statutory interpretation. The City asserts that mere allegations in a complaint of
federal civil rights violations are insufficient to support an award of attorneys' fees
under § 1988.

In response, Rogers Group argues that it is a prevailing party because it
obtained a preliminary injunction that functioned like a grant of partial summary
judgment on the merits of the lawsuit. According to Rogers Group, the district
court—and this court on appeal—found that the City had acted unlawfully in passing
the ordinance. Rogers Group asserts that although the City contends that it
"voluntarily" amended the ordinance, it actually amended the ordinance after the
district court and this court determined that the City had acted unlawfully.
Additionally, Rogers Group maintains that the City reported to the district court that
it modified the ordinance to preserve it—that is, to avoid having it invalidated. Under
such circumstances, Rogers Group argues that the City's amendment is not
"voluntary" and Rogers Group is a prevailing party. Additionally, Rogers Group
maintains that it is entitled to an award of attorneys' fees pursuant to § 1988 because,
although it prevailed on a state-law claim and the federal claims were never
adjudicated, Rogers Group's state and federal claims were closely related, arising
from the same common nucleus of operative fact.

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 Section 1988(b) of 42 U.S.C. provides that

[i]n any action or proceeding to enforce a provision of sections 1981,
1981a, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its
discretion, may allow the prevailing party . . . a reasonable attorney's
fee as part of the costs . . . .

(Emphases added.)

Thus, whether Rogers Group is entitled to attorneys' fees, depends upon (1)
whether Rogers Group is a "prevailing party," and, if so, (2) whether it prevailed
under § 1988 when its § 1983 claims were never addressed. See Sole v. Wyner, 551
U.S. 74, 77 (2007) (explaining that "[f]or private actions brought under 42 U.S.C.
§ 1983," Congress created "an exception to the 'American Rule'" in 42 U.S.C.
§ 1988(b), which "authorizes federal district courts, in their discretion, to 'allow the
prevailing party . . . a reasonable attorney's fee as part of the costs'") (second
alteration in original).

A. Prevailing Party
"In the United States, parties are ordinarily required to bear their own attorney's
fees—the prevailing party is not entitled to collect from the loser." Buckhannon Bd.
& Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602
(2001). This "American Rule" sets forth "a general practice of not awarding fees to
a prevailing party absent explicit statutory authority." Id. (quotations and citation
omitted). "Congress, however, has authorized the award of attorney's fees to the
'prevailing party' in numerous statutes . . . , such as . . . the Civil Rights Attorney's
Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988." Id. at 602–03; see also
Advantage Media, L.L.C. v. City of Hopkins, Minn., 511 F.3d 833, 836 (8th Cir. 2008)
("Congress has provided in 42 U.S.C. § 1988(b) that '[i]n any action or proceeding
to enforce a provision of [various civil rights statutes including 42 U.S.C. § 1983] the

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court, in its discretion, may allow the prevailing party. . . a reasonable attorney's fee
a part of the costs . . . .'") (alterations in original). "Accordingly, a 'plaintiff must be
a 'prevailing party' to recover an attorney's fee under § 1988.'" Advantage Media, 511
F.3d at 836 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

To obtain "an award of litigation costs," a party must be a "prevailing" or
"successful" party, i.e., "one who has been awarded some relief by the court."
Buckhannon, 532 U.S. at 603.

In Buckhannon, the Supreme Court rejected the "catalyst theory" then
prevailing in the circuit courts, which permitted a plaintiff to recover
fees if the lawsuit achieved the desired result through a voluntary
change in the defendant's conduct. Instead, the Court held that, to be a
prevailing party entitled to a statutory attorneys' fee award, a party must
obtain a judicially sanctioned material alteration of the legal relationship
of the parties to the lawsuit. 532 U.S. at 604–05, 121 S.[]Ct. 1835; see
Cody v. Hillard, 304 F.3d 767, 772–73 (8th Cir.[]2002). Citing prior
decisions, the Court noted in Buckhannon that court-ordered consent
decrees and enforceable judgments on the merits create the requisite
material alteration in the parties' relationship. 532 U.S. at 604, 121
S.[]Ct. 1835.

N. Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1085 (8th Cir. 2006). The Supreme
Court dismissed the notion "that the term 'prevailing party' authorizes federal courts
to award attorney's fees to a plaintiff who, by simply filing a nonfrivolous but
nonetheless potentially meritless lawsuit (it will never be determined), has reached
the sought-after destination without obtaining any judicial relief." Buckhannon, 532
U.S. at 606 (quotation and citation omitted).

Following Buckhannon, the Supreme Court held that "[p]revailing party status
. . . does not attend achievement of a preliminary injunction that is reversed,
dissolved, or otherwise undone by the final decision in the same case." Sole, 551 U.S.

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at 83 (footnote omitted); see also id. at 78 ("We . . . hold that a final decision on the
merits denying permanent injunctive relief ordinarily determines who prevails in the
action for purposes of § 1988(b). A plaintiff who achieves a transient victory at the
threshold of an action can gain no award under that fee-shifting provision if, at the
end of the litigation, her initial success is undone and she leaves the courthouse
emptyhanded."). According to the Court, "[a] plaintiff who 'secur[es] a preliminary
injunction, then loses on the merits as the case plays out and judgment is entered
against [her],' has '[won] a battle but los[t] the war.'" Id. at 86 (alterations in original)
(quoting Watson v. Cnty. of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002)). Notably,
the Court in Sole "express[ed] no view on whether, in the absence of a final decision
on the merits of a claim for permanent injunctive relief, success in gaining a
preliminary injunction may sometimes warrant an award of counsel fees." Id. Instead,
the Court's holding was narrowly defined as stating "that a plaintiff who gains a
preliminary injunction does not qualify for an award of counsel fees under § 1988(b)
if the merits of the case are ultimately decided against her." Id.

"We have recognized that a preliminary injunction can in some instances carry
the judicial imprimatur required by Buckhannon to convey prevailing party status."
Advantage Media, 511 F.3d at 837 (citing N. Cheyenne Tribe, 433 F.3d at 1086
("[S]ome preliminary injunctions are sufficiently akin to final relief on the merits to
confer prevailing party status.")). "For example, the grant of a preliminary injunction
should confer prevailing party status if it alters the course of a pending administrative
proceeding and the party's claim a for permanent injunction is rendered moot by the
impact of the preliminary injunction." N. Cheyenne Tribe, 433 F.3d at 1086.

By contrast, "a preliminary injunction granting temporary relief that merely
maintains the status quo does not confer prevailing party status." Id. (holding that
plaintiffs were not prevailing parties where the district "court granted only interim
relief that preserved the status quo until it could resolve the merits of the [plaintiffs']
claims" and, "in granting the preliminary injunction, . . . primarily considered the

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merits of those claims against . . . other defendants"). These types of "preliminary
injunctions have nothing to do with the merits, offering no insight into whether one
party or the other will prevail at the end of the case." McQueary v. Conway, 614 F.3d
591, 600 (6th Cir. 2010). These "stay-put or status quo injunctions . . . turn more on
the grave risks of irreparable harm to one party or to the public interest than on the
legal virtues of the parties' positions." Id.

In determining whether a preliminary injunction creates prevailing-party status,
the D.C. Circuit, analyzing Buckhannon, identified "three core principles" for a court
to consider in "construing the term 'prevailing party' in federal fee-shifting statutes."
Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 946 (D.C. Cir. 2005).

First, in order to be a prevailing party, a claimant must show that there
has been a court-ordered change in the legal relationship between the
plaintiff and the defendant. (Citing Buckhannon, 532 U.S. at 604, 121
S.Ct. 1835.)

Second, a prevailing party is a party in whose favor a judgment is
rendered, regardless of the amount of damages awarded. (Citing
Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835.)

Third, a claimant is not a prevailing party merely by virtue of having
acquired a judicial pronouncement unaccompanied by judicial relief.
(Citing Buckhannon, 532 U.S. at 606, 121 S.Ct. 1835.)

Id. at 947 (citing Thomas v. Nat'l Sci. Found., 330 F.3d 486, 492–93 (D.C. Cir.
2003)).

We conclude that Rogers Group is a prevailing party for §1988 purposes.
"First, there was a court-ordered change in the legal relationship between [Rogers
Group] and the [City]." Id. The district court's preliminary injunction blocked the City
from enforcing the ordinance—which the City had planned to do on December 1,

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2010. See id. ("The trial court’s preliminary injunction blocked enforcement of the
new regulation that had been promulgated by the Secretary in December 2000.").
"[T]he . . . preliminary injunction provided concrete and irreversible judicial relief to
[Rogers Group] based on the [d]istrict [c]ourt's conclusion that [Rogers Group] [was]
likely to prevail on the merits." Id. at 948 (emphasis added). In granting the
preliminary injunction, the district court engaged in a thorough analysis of the
probability that Rogers Group would succeed on the merits of its claim that the City
lacked authority to regulate or license the Quarry; therefore, the preliminary
injunction was not one that merely maintained the status quo. Instead, it "was a court-
ordered change in the legal relationship between the parties." Id.

Second, "[t]he . . . preliminary injunction was a judgment rendered in favor of
[Rogers Group]." Id. "The term 'judgment' includes 'a decree and any order from
which an appeal lies.'" Id. (quoting Black's Law Dictionary 846 (7th ed. 1999)).
Under 28 U.S.C. § 1292(a)(1), "preliminary injunctions are appealable orders." Id.
Here, the City actually appealed the district court's grant of the preliminary
injunction. Thus, "[t]he . . . preliminary injunction meets the legal definition of a
judgment, and there is no dispute that it was rendered in [Rogers Group's] favor." Id.
at 949.

Third, there is no doubt that Rogers Group received "judicial relief." Id.
"Relief" is defined "as 'redress or benefit, esp. equitable in nature (such as an
injunction or specific performance) that a party asks of a court.'" Id. (quoting Black's
Law Dictionary 1293 (7th ed. 1999)). Here, Rogers Group "asked the District Court
for equitable relief in the form of a preliminary injunction that would enjoin the
implementation [and enforcement of the ordinance]." Id. "When the District Court
issued the injunction, it granted [Rogers Group] the precise relief that [it] had
requested." Id.

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 In determining that Rogers Group is a "prevailing party," we note that this is
not a case in which the [City] voluntarily changed its ways before judicial action was
taken. If the [City] had acted to moot this case through voluntary cessation before
there was a judicially sanctioned change in the legal relationship of the parties,
[Rogers Group] would not have been [a] "prevailing part[y]."

Id. "However, the record in this case demonstrates that the District Court's injunction,
not the [City's] voluntary change in conduct, afforded [Rogers Group] the relief [it]
sought"—an injunction blocking the City from enforcing the ordinance. Id.

B. Prevailed Under § 1988
Having determined that Rogers Group is a "prevailing party," we must now
determine whether "a plaintiff br[inging] a § 1983 claim that supports a grant of
attorney's fees and another claim that does not" can be awarded attorneys' fees under
§ 1988 where "the [district] court found in favor of the plaintiff on the non-fee
bearing claim but did not address the § 1983 claim." Planned Parenthood of Houston
& Se. Tex. v. Sanchez, 480 F.3d 734, 739 (5th Cir. 2007).

In Kimbrough v. Arkansas Activities Ass'n, we considered "whether the fact
that [the plaintiff] prevailed on a nonconstitutional ground render[ed] the case
inappropriate for a discretionary award of attorney's fees [under § 1988]." 574 F.2d
423, 426 (8th Cir. 1978). We observed that § 1988 "does not squarely address the
issue as to whether attorney's fees may be awarded when an action is brought under
one of the enumerated sections but is decided on a nonconstitutional ground." Id.
Nevertheless, we found that "[a] footnote to the Report of the House Judiciary
Committee which accompanied the Act does . . . expressly approve of an award of
fees under these circumstances." Id. This footnote provides:

"To the extent a plaintiff joins a claim under one of the statutes
enumerated in [the Act] with a claim that does not allow attorney fees,
that plaintiff, if it prevails on the non-fee claim, is entitled to a

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 determination on the other claim for the purpose of awarding counsel
fees. Morales v. Haines, 486 F.2d 880 (7th Cir. 1973). In some
instances, however, the claim with fees may involve a constitutional
question which the courts are reluctant to resolve if the
nonconstitutional claim is dispositive. Hagans v. Lavine, 415 U.S. 528
[94 S.Ct. 1372, 39 L.Ed.2d 577] (1974). In such cases, if the claim for
which fees may be awarded meets the 'substantiality' test, see Hagans v.
Lavine, supra; United Mine Workers v. Gibbs, 383 U.S. 715 [86 S.Ct.
1130, 16 L.Ed.2d 218] (1966), attorneys' fees may be allowed even
though the court declines to enter judgment for the plaintiff on that
claim, so long as the plaintiff prevails on the non-fee claim arising out
of a 'common nucleus of operative fact[.'] United Mine Workers v.
Gibbs, supra at 725 [86 S.Ct. 1130]."

Id. (alterations in original) (quoting H.R. Rep. No. 1558, 94th Cong., 2d Sess. 4 n.7
(1976)). We noted that "[o]ther courts which have considered this issue have followed
this unambiguous expression of congressional intent." Id. at 427 (citing Seals v.
Quarterly Cnty. Court of Madison Cnty., Tenn., 562 F.2d 390, 393–94 (6th Cir.
1977); Bond v. Stanton, 555 F.2d 172, 174 (7th Cir. 1977); Se. Legal D. Grp. v.
Adams, 436 F. Supp. 891, 884–95 (D. Or.1977)).

The "substantiality" test referred to in the House Judiciary Committee Report
"is jurisdictional in nature." Id. Thus, before a district court can exercise federal
pendent jurisdiction over a non-federal claim, it "must make the threshold
determination that a substantial federal claim, arising from the same nucleus of
operative fact, is raised by the allegations of the complaint. Without the existence of
a substantial federal claim, no federal pendent jurisdiction over the non-federal claim
exists." Id. In Kimbrough, we held that because "the [d]istrict [c]ourt . . . invoked
jurisdiction and disposed of the case on non-federal grounds, it implicitly made the
initial determination that the allegations of the complaint raised a substantial
constitutional claim sufficient to confer jurisdiction." Id.; cf. Emery v. Hunt, 272 F.3d
1042, 1046 (8th Cir. 2001) ("The defendants do not contest that the plaintiffs are

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entitled to an award of attorney fees under these federal statutes, even though the
plaintiffs ultimately prevailed only on state constitutional claims.").

The City asserts that Kimbrough "is probably no longer valid after the much
stricter attorney's fees standard announced" in Buckhannon. But in a post-
Buckhannon decision, the Fifth Circuit observed, consistent with Kimbrough, that
"where a plaintiff br[ings] a § 1983 claim that supports a grant of attorney's fees and
another claim that does not, and the court f[inds] in favor of the plaintiff on the
non-fee bearing claim but d[oes] not address the § 1983 claim," then

such a plaintiff may obtain attorney's fees even though the § 1983 claim
was not decided "provided that 1) the § 1983 claim of constitutional
deprivation was substantial; and 2) the successful pend[e]nt claims arose
out of a common nucleus of operative facts."

Planned Parenthood, 480 F.3d at 739 (quoting Sw. Bell Tel. Co. v. City of El Paso,
346 F.3d 541, 551 (5th Cir. 2003)).

In the present case, Rogers Group stated in its complaint that the district court
had subject matter jurisdiction over the action based on diversity jurisdiction and
federal-question jurisdiction. Thus, Rogers Group had an independent basis for its
state-law claim—diversity jurisdiction—and did not invoke the federal supplemental
jurisdiction of the district court. But Rogers Group's failure to invoke federal
supplemental jurisdiction does not mean that the district court would have lacked
jurisdiction to hear the state-law claim if diversity jurisdiction did not exist. Thus, we
must independently analyze whether Rogers Group's state-law claim could have been
brought under the federal district court's supplemental jurisdiction. See 28 U.S.C.
§ 1367(a) ("Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district courts have
original jurisdiction, the district courts shall have supplemental jurisdiction over all

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other claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of the United
States Constitution. Such supplemental jurisdiction shall include claims that involve
the joinder or intervention of additional parties.").

In Count I, Rogers Group alleged that, under Arkansas law, the City lacked
authority to regulate the Quarry, which was located entirely outside the City limits,
"because a rock quarry is not a nuisance per se." The district court, in granting the
preliminary injunction, agreed with Rogers Group that the City lacked such authority
under Arkansas law. The district court never reached Rogers Group's constitutional
claims. But, in granting Rogers Group's motion for attorneys' fees and costs, the
district court did conclude that Rogers Group was "entitled to a fee award under [42
U.S.C.] § 1988 even though the [c]ourt never reached the constitutional claims
because the allegations in the complaint raised a substantial constitutional claim
sufficient to confer jurisdiction, which is sufficient to support an award of fees under
§ 1988." We agree with the district court's conclusion and hold that if Rogers Group
had invoked supplemental jurisdiction to bring the state-law claims, the district court
could have concluded that the "allegations of the complaint raised a substantial
constitutional claim sufficient to confer jurisdiction," as Rogers Group alleged in
Count II that the ordinance violated the Due Process Clause of the Fourteenth
Amendment and alleged in Count IV that the ordinance constituted an
unconstitutional taking in violation of the Fifth and Fourteenth Amendments. Under
both Counts II and IV, Rogers Group sought damages under § 1983. And, Rogers
Group's claim that the City lacked authority under Arkansas law to regulate the
Quarry—Count I— arises from the same "common nucleus of operative fact" as its
federal constitutional claims. That is, all the claims concern the City's passage of an
ordinance regulating rock quarries, including Rogers Group's Quarry.

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 Therefore, we hold that Rogers Group is a "prevailing party" entitled to an
award of attorneys' fees pursuant to § 1988, even though the district court never
reached its § 1983 claims.

III. Conclusion
Accordingly, we affirm the judgment of the district court.
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